In Bargain Busting Ltd v Shenzhen SKE Technology Company Ltd & Ors [2026] EWHC 933 (Ch), Matthews J expressed his dissatisfaction with the weaponisation of the contempt jurisdiction. Matthews J underlined that the jurisdiction should not be viewed by litigators as a stick to beat their opponent with; a marketing tool to show how fearless they are; or a demonstration of how committed they are to their client’s case. Instead, Matthews J’s view was that the contempt jurisdiction should be exercised only where it is properly justified and the courts should be vigilant to see that its exercise is so confined.
Summary
Bargain Busting Limited (“BBL”) and SKE Technology Company Ltd (“SKE”) are competitors in the vaping market which were involved in a dispute over the registration of a trademark. The IPO considered SKE’s opposition to the registration and dismissed it. SKE appealed the IPO’s decision to the High Court, which dismissed the appeal. The form of order giving effect to the High Court’s judgment was agreed by the parties. It did not provide for any stay of the registration pending a further appeal.
SKE applied for permission to appeal the High Court’s decision. In the interim, its legal representatives wrote to the IPO asserting that the registration should not be effected until after SKE’s application for permission to appeal was refused, or, if it was granted, until the final determination of the appeal.
After some further correspondence, BBL’s legal representatives served SKE and its legal representatives with contempt proceedings. BBL alleged that SKE and its representatives had committed criminal contempt by seeking to prevent or delay the registration of the trademark, as directed by the High Court, thereby interfering with the administration of justice. SKE and its representatives sought to strike out the proceedings.
The law on contempt
Matthews J referred to the Court of Appeal’s decision in BHP Group (UK) Limited v Municipio de Mariana [2026] EWCA Civ 294, which set out the principles applicable to criminal contempt (I considered this decision in the Disputes Brief on 22 March 2026). Having done so, Matthews J emphasised that, for a finding of criminal contempt to be made, the applicant had to demonstrate a wider public interest.
Risk of interference
BBL relied on certain representations made by SKE and its representatives in the course of seeking to persuade the IPO not to register the trademark following the High Court judgment. Matthews J found that the representations were requests, or statements of SKE’s position. These “indicative statements”, which Matthews J had to assume (for the purposes of the application) were false, could not possibly interfere with the administration of justice. This was because the IPO had the power to decide to register, it knew exactly what the legal position was, and acted in accordance with its own internal guidance at the time.
In BHP, Popplewell LJ had said that: “Conduct which is improper and carries a sufficient risk of interference with the administration of justice is a criminal contempt, and can be rendered a contempt by the purpose being improper even if it would be lawful but for that purpose.” Matthews J found nothing improper in a person interested in the (non)registration of a trademark from submitting that registration should not take place. Of note, Matthews J stressed that litigants and their lawyers are entitled to argue what the law actually is and losing that argument should not (and does not) put the litigant or the lawyer arguing for the failed position in contempt of court. Indeed, Matthews J said, if the position were to the contrary, “it would be a dark day for civil liberty”.
Conclusion
Matthews J’s message is clear: use of the contempt jurisdiction should be reserved for serious cases of non-compliance with injunctions or orders for specific performance, or for serious disruption of court hearings and interference with juries. In this respect, using some of Matthews J’s phraseology, all is not fair in love and litigation, and the exercise of the contempt jurisdiction should go back to being a “rare beast”.
